MORIARTY v. DIBUONAVENTURA, ET AL.

Filing 38

MEMORANDUM OPINION. Signed by Chief Judge Jerome B. Simandle on 3/30/2015. (tf, )

NOT FOR PUBLICATION
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY

PAUL D. MORIARTY,

HONORABLE JEROME B. SIMANDLE

Plaintiff,
Civil Action
No. 14-cv-2492 (JBS/AMD)

v.
PTL. JOSEPH DIBUONAVENTURA,
et al.,

MEMORANDUM OPINION

Defendants.

APPEARANCES:
William C. Popjoy, III, Esq.
POPJOY & KELLY, LLC
23 Euclid St., 2nd Floor
Woodbury, NJ 08096
Attorney for Plaintiff
A Michael Barker, Esq.
BARKER, GELFAND & JAMES
Linwood Greene, Suite 12
210 New Road
Linwood, NJ 08221
Attorney for Defendant Washington Township Police
Department
Robert A. Baxter, Esq.
KELLEY, WARDELL, CRAIG, ANNIN & BAXTER, LLC
41 Grove Street
Haddonfield, NJ 08033
Attorney for Defendant Ptl. Joseph Dibuonaventura
SIMANDLE, Chief Judge:
This matter comes before the Court on Defendant Washington
Township Police Department’s (“the WTPD”) motion to dismiss
[Docket Item 21] Plaintiff’s Amended Complaint. [Docket Item

20.] Plaintiff brought claims against the WTPD and Defendant
Officer Joseph DiBuonaventura for initiating an illegal traffic
stop, malicious prosecution, and establishing inadequate
policies, procedures, and customs with regard to the dismissal
of charges, traffic stop protocol, and employee training and
supervision. The Court dismissed Plaintiff’s Complaint in an
earlier opinion [Docket Item 15], and Plaintiff has now filed an
Amended Complaint which seeks to cure the deficiencies discussed
in the Court’s Opinion. [Docket Item 20.] Plaintiff’s revised
Amended Complaint contains some additional allegations to his §
1983 claims against the WTPD for failure to train, supervise,
and discipline (Count III). As all other allegations in
Plaintiff’s Amended Complaint remain unchanged, the sole inquiry
is whether Plaintiff’s new allegations make out a plausible
claim that there existed a policy or practice of making illegal
traffic stops which the WTPD knew or should have known would
result in violations of the constitutional rights of citizens.
The Court assumes the parties’ familiarity with the factual
background, which was fully set forth in the Court’s earlier
opinion, and will not revisit it here. Because Plaintiff’s
Amended Complaint fails to state a plausible claim for relief,
the Court will grant Defendant’s motion to dismiss and will
dismiss all claims against the WTPD, and Plaintiff’s official

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capacity claim against Officer DiBuonaventura, with prejudice.
The Court finds as follows:
1.

A motion to dismiss under Fed. R. Civ. P. 12(b)(6) may

be granted only if, accepting all well-pleaded allegations in
the complaint as true and viewing them in the light most
favorable to the plaintiff, a court concludes that plaintiff
failed to set forth sufficient facts to state a claim for relief
that is plausible on its face. Bell Atlantic Corp. v. Twombly,
550 U.S. 544 (2007); Fleisher v. Standard Ins. Co., 679 F.3d
116, 120 (3d Cir. 2012). “A claim has facial plausibility when
the plaintiff pleads factual content that allows the court to
draw the reasonable inference that the defendant is liable for
the misconduct alleged.”

Ashcroft v. Iqbal, 556 U.S. 662, 678

(2009). However, legal conclusions are not entitled to the same
assumption of truth, and “[a] pleading that offers labels and
conclusions or a formulaic recitation of the elements of a cause
of action will not do.” Id. To determine if a complaint meets
the pleading standard, the Court must strip away conclusory
statements and “look for well-pled factual allegations, assume
their veracity, and then determine whether they plausibly give
rise to an entitlement of relief.” Bistrian v. Levi, 696 F.3d
352, 365 (3d Cir. 2012) (internal quotation marks omitted).
2.

The changes to Plaintiff’s Amended Complaint are

contained entirely in Count III, which are the § 1983 claims
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against the WTPD for failure to properly train, supervise, and
discipline Officer DiBuonaventura. Within Count III, Plaintiff’s
Amended Complaint newly alleges that Officer DiBuonaventura “had
a pattern and practice of stopping motor vehicle[s] without
probable cause, issuing motor vehicle summonses and/or
effectuating arrests, and thereafter prosecuting the charges
resulting from the unlawful stops without dismissing the same.”
(Am. Compl. ¶ 36.) Plaintiff states that DiBuonaventura’s
practice “was so permanent and well-settled as to virtually
constitute law.” (Id. ¶¶ 42, 49.) Plaintiff further alleges that
the Chief of Police at the WTPD “had knowledge of, and/or
acquiesced to” DiBuonaventura’s pattern and practice, and that
despite being aware of DiBuonaventura’s practice, “failed to
take any precautions against future violations.” (Id. ¶¶ 37,
45.) He alleges that DiBuonaventura’s unlawful behavior was the
result of the WTPD’s failure to train and supervise
DiBuonaventura in the correct legal standard for making traffic
stops and pursuing and dismissing charges, and failure to
discipline DiBuonaventura for violations. (Id. ¶¶ 39-41.)
Plaintiff also alleges the WTPD’s failure also resulted in the
“malicious continuing prosecution of the Plaintiff” after
discovering that there was no basis for the charges against him.
(Id. ¶ 43.) Plaintiff alleges that the WTPD’s failure to train,
supervise, monitor, and discipline DiBuonaventura “amounted to
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deliberate indifference to the rights of citizens with whom
Officer DiBuonaventura would come into contact.” (Id. ¶ 43.)
3.

The allegations contained in the factual background

remain unchanged from Plaintiffs’ original Complaint, and
concern only the single traffic stop and arrest of Plaintiff by
Officer DiBuonaventura. (Am. Compl. ¶¶ 12-23.)
4.

In its earlier opinion, the Court explained that to

prevail on a Monell claim against a municipality, a plaintiff
must first establish that the municipality had a policy or
custom that deprived him of his constitutional rights. (July 31,
2014 Opinion, at 11-12.) McTernan v. City of York, 564 F.3d 636,
657 (3d Cir. 2009) (quoting Beck v. City of Pittsburgh, 89 F.3d
966, 971 (3d Cir. 1996)). In other words, the plaintiff must
show that the municipality, through one of its policymakers,
affirmatively proclaimed a policy, or acquiesced in the
widespread custom, that caused the violation. Watson v. Abington
Twp., 478 F.3d 144, 155–156 (3d Cir. 2007). A plaintiff may show
the existence of a policy when a decision-maker with final
authority issues an official proclamation, policy, or edict.”
Bielevicz v. Dubinon, 915 F.2d 845, 850 (3d Cir. 1990). Custom
may be established by showing that a given course of conduct,
“although not specifically endorsed or authorized by law, is so
well-settled and permanent as virtually to constitute law.” Id.;
see also Watson, 478 F.3d at 155-56. For a § 1983 claim of
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failure to train or supervise municipal employees, the plaintiff
must show that the failure to provide training or supervision
amounted to “‘deliberate indifference” to the rights of persons
with whom the employee will come into contact.” Thomas v.
Cumberland Cnty., 749 F.3d 217, 222 (3d Cir. 2014). Deliberate
indifference may be demonstrated by showing a pattern of
violations which puts the municipal employee on notice that a
new program is necessary; or a single incident violation where
the need for training was patently obvious. Id. at 223.
5.

The new allegations in Plaintiff’s Amended Complaint

are insufficient to allege a plausible § 1983 claim against the
WTPD. First, the Court previously held that because Plaintiff’s
factual allegations contained facts only with respect to the
single traffic stop by Officer DiBuonaventura, Plaintiff’s
original Complaint did not permit an inference that there
existed a widespread custom of conduct that caused the
constitutional violation. Plaintiff’s Amended Complaint does not
cure this deficiency. Although Plaintiff now pleads that
DiBuonaventura had a “pattern and practice” of making illegal
traffic stops and that the practice was “so permanent and wellsettled as to virtually constitute law,” there are no additional
factual allegations in the Amended Complaint which would support
this conclusion. The factual background remains unchanged from
the original Complaint, and refers only to the single traffic
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stop made by DiBuonaventura. Plaintiff’s new allegations of
“pattern and practice” are unsupported and as such, are not
entitled to the assumption of truth.
6.

Plaintiff argues that an illegal policy or custom of

failure to train or supervise municipal employees may be
inferred from a single unconstitutional act, here, Officer
DiBuonaventura’s unlawful traffic stop. (Pl. Br. [Docket Item
26] 12.) In order to establish municipal liability under this
“single-incident” theory, however, the plaintiff must allege
some facts from which to infer that there was a lack of training
or supervision; and that the need for training in that
particular situation was “so obvious” that the failure to do so
could properly be characterized as “deliberate indifference” to
constitutional rights. City of Canton v. Harris, 489 U.S. 378,
390 (1989); see also Connick v. Thompson, 131 S. Ct. 1350, 1361
(2011) (single incident may trigger municipal liability where
unconstitutional consequences for failure to train are “patently
obvious”).
7.

Plaintiff’s Complaint fails to make out a theory of

municipal liability under the single-incident theory. This
Court, in its earlier Opinion, had examined Plaintiff’s factual
allegations and concluded that the Complaint “lack[ed] factual
content to permit a reasonable inference that a deficient
training program existed, of which Plaintiff’s alleged injuries
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were the ‘obvious’ or ‘highly predictable’ consequence.” (July
31, 2014 Opinion, at 18.) Plaintiff’s Amended Complaint does not
cure this deficiency. There are no facts to suggest that the
WTPD’s training on probable cause during traffic stops was
inadequate, nor are there any facts to suggest that
DiBuonaventura’s unlawful traffic stop in this case was the
result of a lack of training, as opposed to DiBuonaventura’s
individual actions.
8.

For similar reasons, Plaintiff’s related § 1983 claims

for failure to supervise and failure to discipline are also
insufficiently pled. There are no new facts beyond what was in
Plaintiff’s original Complaint to show that DiBuonaventura was
inadequately supervised, or that the WTPD failed to discipline
DiBuonaventura for his conduct. Plaintiff’s Amended Complaint
states only that the WTPD had knowledge of “the unlawful
propensities” of DiBuonaventura before the incident at issue
with Plaintiff. (Am. Compl. ¶ 23.) These facts have not changed
from Plaintiff’s original Complaint (see Compl. ¶ 23), and the
Court has already dismissed this allegation as insufficient,
noting that “[v]ague references to the ‘unlawful propensities’
that do not affirmatively link those propensities to the injury
allegedly suffered by Plaintiff are insufficient to meet the
causation pleading requirement.” (July 31, 2014 Opinion, at 2223.)
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9.

Finally, Plaintiff has failed to allege any facts to

support that a decisionmaker at the WTPD had knowledge of the
unconstitutional acts. As noted above, to prove the liability of
the municipality, a plaintiff must show that a municipal
official with policymaking authority either effectuated an
unconstitutional policy or knew of and acquiesced in a
widespread unconstitutional custom. See McTernan v. City of
York, 564 F.3d 636, 658-59 (3d Cir. 2007) (allegations did not
establish municipal liability where complaint failed to plead
that a municipal decisionmaker such as the Mayor or Chief of
Police knew of, let alone directed, the officers’ actions). In
an attempt to overcome this hurdle, Plaintiff makes the bare
assertion that the Chief of Police “had knowledge of, and/or
acquiesced to” DiBuonaventura’s pattern and practice. Again,
Plaintiff’s allegation is unsupported by any factual basis
suggesting that the Chief of Police was actually aware that
DiBuonaventura was making illegal traffic stops and failed to
act.1 See Watson, 478 F.3d at 157 (citing Andrews v. City of
Philadelphia, 895 F.2d 1469, 1481 (3d Cir. 1990). Plaintiff’s
conclusory allegation amounts to nothing more than a formulaic
recitation of the elements of his claim and will not be credited
as true. Accordingly, the Court will dismiss Plaintiff’s § 1983

1

Indeed, the allegations indicate only that DiBuonaventura made
a single unlawful traffic stop against Plaintiff.
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municipal liability claims for failure to train, supervise, and
discipline Officer DiBuonaventura.
10.

The Court must also dismiss the official capacity

claim against Plaintiff DiBuonaventura. Plaintiff asserts the
WTPD is liable for Officer DiBuonaventura’s own unconstitutional
conduct. When a government official is sued in his official
capacity, a government entity is liable under § 1983 only when
the entity is the “moving force” behind the constitutional
deprivation. Kentucky v. Graham, 473 U.S. 159, 166 (1985)
(internal quotations and citation omitted); Monell v. Dep’t of
Soc. Servs., 436 U.S. 658, 694 (1978) (government entity may not
be sued for an injury inflicted by its agents except when
agents’ conduct was the execution of government policy or
custom). As Plaintiff has failed to allege the existence of
municipal policy or custom or that the WTPD was the “moving
force” behind DiBuonaventura’s actions in this case, Plaintiff
has not sufficiently stated a claim against DiBuonaventura in
his official capacity. The Court makes no determination as to
the viability of the claims against DiBuonaventura in his
individual capacity, as DiBuonaventura is not a moving party.
11.

Plaintiff’s Amended Complaint fails to plead plausible

claims for relief and fails to cure the deficiencies of the
original Complaint. The Court previously identified these
deficiencies and gave Plaintiff an opportunity to cure them.
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Because Plaintiff has, again, failed to plead plausible claims
for relief in non-conclusory terms, Plaintiff’s claims against
the WTPD will be dismissed with prejudice. An accompanying order
will be entered.

March 30, 2015
Date

s/ Jerome B. Simandle
JEROME B. SIMANDLE
Chief U.S. District Judge

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